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Tuesday, May 26, 2015

Unit member claims her employee organization breached its duty of fair representation when it refused to provide her with legal representation



Unit member claims her employee organization breached its duty of fair representation when it refused to provide her with legal representation
2015 NY Slip Op 04234, Appellate Division, First Department

A member [Member] of the collective bargaining unit sued the Member’s collective bargaining  organization [CBO]  after receiving a letter from the CBO advising her that:

[1] Her grievance concerning a salary adjustment was denied;

[2] The CBO did not believe that her claim was meritorious; and

[3] The CBO would not pursue the matter at arbitration.

Supreme Court dismissed Member’s Article 78 petition challenging the CBO's decision not to pursue the matter as untimely. The Appellate Division affirmed the lower court’s decision and, in addition, addressed a number of substantive issues raised by Member in her Article 78 petition

Considering Member’s claim that the Doctrine of Equitable Estoppel precluded the CBO from invoking the statute of limitations as a defense, the Appellate Division said that it disagreed with Member's theory the Doctrine barred the CBO's from arguing that her Article 78 action was untimely.

The court said that although Member alleged that her delay in filing her Article 78 petition was caused by the CBO’s alleged failure to advise her that it had access to her personnel records, her “claim is not dependent on knowledge of this fact.” Further, the Appellate Division commented that “in any event, mere silence is insufficient to invoke the doctrine of equitable estoppel, citing Ross v Louise Wise Servs. Inc., 8 NY3d 478.

Member also contended that the CBO had breached its duty of fair representation when it refused to provide her with counsel to defend herself in an action brought by her former employer to recover an alleged salary overpayment. The Appellate Division explained that such refusal “does not state a claim for breach of the duty of fair representation” as Member could have presented her own defense in the action, and any alleged misconduct

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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